DeLay's prosecutors lack a key document

They don't have list of candidates at the heart of the laundering case, just a 'similar' one

R.G. RATCLIFFE, Copyright 2005 Houston Chronicle Austin Bureau

Published 5:30 am, Saturday, October 15, 2005

AUSTIN - Travis County prosecutors admitted Friday they lack physical proof of a list of Republican candidates that is at the heart of money-laundering indictments against U.S. Rep. Tom DeLay and two of his associates.

The list is key to prosecutors being able to prove that corporate money that could not be legally spent on Texas candidates was specifically exchanged at the national level for donations that legally could be spent on Republican candidates for the Texas House.

Indictments against DeLay, Jim Ellis and John Colyandro state that Ellis gave "a document that contained the names of several candidates for the Texas House" to a Republican National Committee official in 2002 in a scheme to swap $190,000 in restricted corporate money for the same amount of money from individuals that could be legally used by Texas candidates.

But prosecutors said Friday in court that they only had a "similar" list and not the one allegedly received by then-RNC Deputy Director Terry Nelson. Late in the day, they released a list of 17 Republican candidates, but only seven are alleged to have received money in the scheme.

A lawyer for Ellis said prosecutors' inability to produce the list mentioned in the indictments is on par with the tactics used by U.S. Sen. Joseph McCarthy in the communist witch hunts of the 1950s.

"I'll tell you what I think about this list. In the 1950s, a man named McCarthy claimed to have a list of 200 communists in the State Department, and he didn't," said J.D. Pauerstein, a lawyer for Jim Ellis, the director of DeLay's Americans for a Republican Majority. "They (prosecutors) don't know what list they're talking about, even though they specify it in their indictment."

Nelson's testimony is key

Without the exact list, the prosecutors' case against DeLay, Ellis and Colyandro likely turns on Nelson's testimony. Nelson testified at least twice to grand juries hearing the case.

"That would be something Mr. Nelson could testify to, and the jury could weigh the testimony and decide whether to accept it or whether he's confused about what list he saw three or four years ago in the midst of a heated election cycle," Pauerstein said.

Lawyers for Ellis and Colyandro demanded a copy of the list from Travis County prosecutors during the court hearing Friday. But Assistant District Attorney Rick Reed told state District Judge Bob Perkins that the list prosecutors wanted to provide the defense was not the one mentioned in the indictment.

Reed said prosecutors had a list of candidates from the business papers of the DeLay-founded Texans for a Republican Majority, TRMPAC, that they believe was a precursor to the one given to Nelson.

"Despite the fact that the state cannot conclusively prove that the said document is a duplicate (or copy thereof)" of the document given to Nelson, the "state believes that the document is at least factually related" to the document mentioned in the indictment, Reed said in a court brief filed after the hearing.

The list released by prosecutors contained the names of 17 Republican state House candidates from 2002. Nine of the candidates had dollar amounts listed next to their names totaling $230,000.

Those nine include the seven candidates who received the contested $190,000 in donations from the Republican National State Elections Committee, with the dollar amounts next to their names matching the donations they received.

A lawyer for Colyandro said he was stunned to learn the state does not have a copy of the list given to Nelson. Colyandro was the executive director of TRMPAC.

"It's just hard to believe this (list) is central to their indictment," said Colyandro attorney Joe Turner. "They've had this grand jury investigation for over three years now, and they don't have a list, and now they've come up with a document that they say is similar to the list."

'Astonishing, astonishing'

DeLay's lawyer,
Dick DeGuerin
of Houston, was not present in court Friday. But he later said the lack of a list "destroys" District Attorney
Ronnie Earle
's case against the three men.

"That's astonishing, astonishing that they would get a grand jury to indict and allege there is a list and then they have to admit in open court the first time they appear in open court that there is no list," DeGuerin said.

In a civil lawsuit related to the case, RNC election law counsel Charles Spies testified in March that he knew of no list of Texas candidates being given to the RNC as part of an alleged money exchange in 2002.

Nelson has referred questions to the RNC, whose spokesman Brian Jones has declined to comment.

The indictments allege Colyandro had a TRMPAC check for $190,000 drawn from corporate funds and sent to Ellis, who in turn gave the check to Nelson on Sept. 13, 2002. The indictment says Ellis gave Nelson a document with candidate names on it and outlined how they should receive donations "in exchange" for the TRMPAC corporate money.

Texas law prohibits corporate donations to candidates.

Pauerstein said it was legal for TRMPAC to accept corporate money so long as it did not donate it to a candidate.

He said there is no state law to prohibit TRMPAC from donating corporate money to the RNC.

"If they (corporations) want to give them (TRMPAC) $100,000 to set on fire in a parking lot, that's not illegal. There's no intent for that to be a campaign contribution," Pauerstein said.

Subpoenas raise criticism

Pauerstein also blasted prosecutors for a new set of subpoenas that he said includes a request for the 2002 phone records of Ellis' daughter.

"On top of that, they are now subpoenaing cell phone records of Jim Ellis' 17-year-old daughter. This is a prosecution that has run amok. It's time for this to stop," Pauerstein said. "I guess they think Jim's 17-year-old daughter is a money launderer. I think it's outrageous that they're doing that to the young lady."

Earle responded to Pauerstein's comments by saying, "The investigation is continuing."